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    On Law
    On Law
    On Law
    Ebook106 pages2 hours

    On Law

    By John L. Bowman

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    This is a book about the nature of law and its proposition is law should embody justice-but it does not. It does not because there exists a jurisprudential tug of war today between natural and normative law based on morality and non-natural and descriptive law that claims law is simply a social fact. American jurisprudence, perhaps for the first time in human history was founded on natural law. The Constitution embodied morality derived from the social contract which was derived in part from John Locke who believed the end of law is not to abolish or restrain but to preserve and enlarge freedom. But America is embracing non-natural law and the consequences have been unequal treatment under the law, erosion of the rule of law and injustice in the law. Americas judiciary is in turmoil and this book explains why. It does so by exploring contemporary philosophies of law, important moral theories including the social contract, the nature of justice as well as rights, legal reasoning, punishment, responsibility, procedure and evidence.
    LanguageEnglish
    PublisherAuthorHouse
    Release dateFeb 10, 2014
    ISBN9781491858677
    On Law
    Author

    John L. Bowman

    The author received a Bachelor of Arts degree in 1973 from Whitman College, a Bachelor of Arts degree in philosophy in 1993 from Portland State University, and a Masters of Interdisciplinary Studies degree from Oregon State University in 2010. His areas of study for the master’s degree were philosophy (ethics and theories of the mind) and ancient history. He is the author of numerous books on philosophy, real estate, and politics. He lives in Portland, Oregon where he raised three daughters with his wife Kathy.

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      Book preview

      On Law - John L. Bowman

      2014 John L. Bowman. All rights reserved.

      No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

      Published by AuthorHouse 01/30/2014

      ISBN: 978-1-4918-5868-4 (sc)

      ISBN: 978-1-4918-5867-7 (e)

      Library of Congress Control Number: 2014901959

      Any people depicted in stock imagery provided by Thinkstock are models, and such images are being used for illustrative purposes only.

      Certain stock imagery © Thinkstock.

      Because of the dynamic nature of the Internet, any web addresses or links contained in this book may have changed since publication and may no longer be valid. The views expressed in this work are solely those of the author and do not necessarily reflect the views of the publisher, and the publisher hereby disclaims any responsibility for them.

      TABLE OF CONTENTS

      ACKNOWLEDGEMENT

      AUTHOR COMMENT

      COVER DESCRIPTION

      INTRODUCTION

      PHILOSOPHIES OF LAW

      NATURAL LAW • LEGAL POSITIVISM • LEGAL REALISM • DWORKINISM • CHOOSING A PHILOSOPHY

      MORALITY

      VIRTUE THEORY • UTILITARIANISM • KANTIANISM • SOCIAL CONTRACT THEORY • OBEYING THE LAW • OBJECTIVITY

      THE SOCIAL CONTRACT

      THOMAS HOBBES • JOHN LOCKE • DAVID GAUTHIER • ARGUMENTS AGAINST • ARGUMENTS FOR • SOCIAL CONTRACT • NATURAL LAW

      JUSTICE

      ARISTOTLE • UTILITARIANISM • JOHN RAWLS • JUSTICE

      RIGHTS

      CHARACTERISTICS OF RIGHTS • WESLEY HOHFELD • RAYMOND WACKS • DEFINING RIGHTS • NON-NATURAL RIGHTS • NEGATIVE AND POSITIVE RIGHTS

      LEGAL REASONING

      FROM RULES • FROM PRECEDENT

      PUNISHMENT

      UTILITARIANISM • RETRIBUTIVISM • CAPITAL PUNISHMENT • CONCERNS AND CONSIDERATIONS

      RESPONSIBILITY

      LEGAL RESPONSIBILITY • SAMARITAN LAWS • INSANITY LAWS • INTENTION • LIABILITY

      PROCEDURE AND EVIDENCE

      LIMITATIONS • PROCEDURES AND PRINCIPLES

      CONCLUSION

      ABOUT THE AUTHOR

      BOOKS BY JOHN L. BOWMAN

      ACKNOWLEDGEMENT

      This book, On Law, is a condensed version of my unpublished manuscript The Philosophy of Law. I would like to thank Donald Stark, Esq., J. D. for his valuable contribution to the writing of that manuscript.

      AUTHOR COMMENT

      On Law is about the nature of the law. This book does not evaluate the law through the lens of a prosecutor who thinks justice is money used for a trial, an attorney who finds justice in winning a case or a judge who tries to balance precedence with his personal conception of justice. Rather, it looks at the law from the perspective of a philosopher who believes that the law ought to be based on justice.

      COVER DESCRIPTION

      The cover is a photograph of the main portico of the Supreme Court building in Washington, D.C. Carved above the columns is the jurisprudential aspirational inscription Equal Justice Under Law. The question is, does the law in America impart justice? (Cover photo credits to Franz Jantzen, Collection of the Supreme Court of the United States)

      INTRODUCTION

      [The law should] cause justice to reign over all of us.

      —Frédéric Bastiat

      The foundation of justice is good faith.

      —Marcus Tullius Cicero

      This book carefully threads a filipendulous theory of the law through many jurisprudential and philosophic minefields. This thread begins with the proposition that the law ought to be based on justice—which is important because that which can compel, imprison and execute should be fair. But what is justice? In order to answer this question, I explain certain philosophies of the law and then seek to explain the philosophy on which the law should be based. I continue by proposing that morality, or the notion of how we should live, is the source of our concept of justice. But which ethical theory do we then appeal to in order to define justice? To answer this, I describe some principle ethical theories and conclude that a non-theistic form of the social contract theory provides the best answer. Additionally, I explain the social contract theory and conclude that humans derive the concept of justice from it. This means, then, that the law should be based on the social contract theory because it is a naturalistic morality that emanates from our human natures. Finally, this book examines a few manifestations of the social contract theory of law in rights, reasoning, punishment, responsibility, procedure and evidence.

      My proposition in On Law is that the law ought to be based on justice because the law’s essential purpose is to promote certain ends—peace, prosperity and human happiness. These ends entail protecting life, liberty and property. Unfortunately, the law does not always entail these ends but rather opinion, sentiment, desire, power, politics, wrongful ideals, practicality, revenge, fashion, religion, compassion, ideology and utility. Such influences in law often distract from its essential purpose and sow discord, revolution, chaos and anarchy.

      The history of humankind could be described as people’s aspirations to achieve individual freedom and happiness. The law is many things, but these aspirations explain its evolution. The problem is that the law is often a manifestation of man’s view of what is right at any given point in time. Should it represent collectivistic or individual values, the rights of the majority or the individual, or ought it derive its authority from universals or particulars? These questions about the law and justice ask: What is moral? If we cannot define what is moral, how can we arrive at a definition of justice on which the law ought to be based? On Law explores these questions in depth.

      It only seems right that that the law ought to embody justice. But, again, what is justice? The debate over the definition of justice can be traced to ancient relativistic sophist philosophers like Protagoras, who famously said that man is the measure of all things. Does justice derive from man-made law (nomos) or natural law (physis), which has its origins in unchanging nature? The very issue of what laws dispense justice can be seen played out historically in Hammurabi’s Code, canon law’s Decretum, civil law’s Twelve Tables, Justinian’s Code, Napoleon’s Code, common law’s Magna Carta and Year Books and Sir William Blackstone’s Commentaries. I will humbly endeavor to sort out these issues.

      PHILOSOPHIES OF LAW

      There are four contemporary philosophies of law: natural law, legal positivism, legal realism and, to an extent, Dworkinism (named after philosopher Ronald Dworkin). Natural law is principally normative and cognitive in that it endeavors to make a truth claim on what the law ought to do. Positivistic, realistic and Dworkinian philosophies, called non-natural law theories, are mainly descriptive and non-cognitive because their truth claim is only to describe what the law is. This book evaluates the law from a normative, cognitive perspective because that which can compel ought to embody values and ethics that champion human life, liberty, property and happiness.

      Natural Law

      Natural law proponents include historic thinkers such as Marcus Tullius Cicero, Thomas Aquinas, John Locke, Sir William Blackstone and Frédéric Bastiat. They all postulated the idea that laws are derived from timeless natural moral laws, which some call God and others call nature. These a priori laws of nature do not exist in books—they embody a morality that precedes and is higher than human law. For all advocates of natural law, morality is a necessary criterion for valid law, and human law is the realization of a higher moral law.

      Naturalistic law presupposes we are moral beings who possess reason, which is what binds us legally—we are bound because our reason examined nature. The very concepts of fairness and justice naturally come from human reason and not revelation, intuition, authority, feelings or inclinations.

      Cicero believed natural law meant in accordance with reason and wrote that the law and morality are one. Natural laws are a universal and immutable higher law discoverable by reason. Aquinas distinguished between higher (eternal) law and human (temporal) law, which he expressed as lex iniusta non est lex (an unjust

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